December 23, 2005
Congress Should Give Bush Power To Tap Terrorists
By Mort Kondracke

By all means, Congress should hold hearings to determine whether President Bush had the authority to intercept communications involving terrorist suspects in the U.S.
And, if he didnt have the authority, Congress should give it to him  forthwith.

Ideally, Congress should tear down whatever barriers prevent the government from getting court warrants to tap terrorists. But, if it cant do that, it should authorize no-warrant intercepts, subject to eventual court review.

What newspapers and Bush critics are characterizing as domestic spying conjures up images of J. Edgar Hoover tapping the Rev. Martin Luther King Jr. to get blackmail material or Richard Nixon ordering taps on Vietnam war dissenters.
So far as is known in discussion since The New York Times revealed the Bush wiretap policy, domestic refers strictly to the American end of international calls between suspected Al Qaeda operatives.

These are not people exercising First Amendment rights to protest U.S. policy in the Mideast. Al Qaeda leaders have openly declared intent to use nuclear and biological weapons to kill as many Americans as they possibly can.

Bush and his defenders have repeatedly stated  legitimately  that hes been criticized for failing to connect the dots on terrorist activity prior to Sept. 11, 2001, and that his ordering National Security Agency intercepts are his attempt to correct that error.

Senate Judiciary Committee chairman Arlen Specter (R-Pa.) has promised hearings on the program, and he should hold them, as should the House and Senate intelligence committees.

Because of the highly classified nature of the activity  including, its been hinted, some secret technological advances  the hearings must be closed.

But the committees should issue a report on whether they think Bush had authority to order the program and should recommend legislation, if necessary, to allow him to proceed.

Bush and his defenders claim that its too slow and cumbersome to obtain warrants from the Foreign Intelligence Surveillance Court when a terrorist target has been identified and an intercept needs to be established quickly.

Critics respond that the 1978 Foreign Intelligence Surveillance Act gives the government 72 hours of emergency authority to conduct intercepts, after which a court warrant must be obtained. Its not clear why that isnt adequate for what Bush wants to do.

Whatever roadblocks stand in the way of the administrations getting authority to monitor terrorist suspects effectively, though, Congress should remove them.

The FISA court should be empowered to insure that no administration can misuse its authority to tap true domestic dissidents, but Congress probably should lower the standard to allow NSA intercepts when the government has reason to believe that terrorist planning is under way, rather than probable cause.

If a 72-hour emergency period is deemed inadequate, it ought to be extended. If paperwork is a problem, it should be streamlined.
There should never be another case like that of Al Qaeda operative Zacarias Moussaoui, whose laptop computer couldnt be examined prior to Sept. 11 because the Justice Department did not think it could get FISA court permission.

Congress might also consider empowering the president, with expedited FISA approval, to tap communications conducted entirely within the U.S. If one terrorist in San Diego is plotting with another in Chicago, the government ought to be able to use electronic surveillance to stop them.

It would be far better for Congress to write laws allowing the president to do what needs to be done to protect the country than to let Bush exercise his inherent presidential powers, as he conceives of them.

The evidence suggests that there are next to no limits to what Bush thinks he can do as chief executive and commander in chief. By executive order, he sealed all presidential records from public view for 25 years and decided, after Sept. 11, that he could imprison, judge and condemn unlawful combatants without court review.

Early on, he also got legal opinions from his minions that exempted him from observing international law in the treatment of prisoners and the Justice Department declared that he has plenary power in the conduct of war  to the extent of initiating it without Congressional involvement.

Congress and the courts need to exercise legitimate authority to rein in an imperial presidency, but they also need to use good judgment in doing so.

Its not good judgment when Members of Congress erupted over the disclosure of the identity of CIA operative Valarie Plame, but not over The Washington Posts disclosure that the U.S. maintains secret detention facilities in Europe or The New York Times disclosure of the no-warrant intercept policy.

Attorney Gen. Alberto Gonzales said that one reason Bush didnt seek Congressional authorization for domestic taps on terrorists is that he got word that Congress wouldnt grant it.

Now that existence of the program is known  and its been established that the Clinton administration believed it had authority to conduct similar operations  Congress ought to act.

And if anyone in Congress stands in the way of a presidents ability to prevent a terrorist attack, theyre fair game the next time they run for reelection.

Whoever doesn't realize by now that this whole thing is just more crap from the left in their ever going attempt to bring this President down, fueled by their burning HATE for him, must have their head buried up their.... posterior orifice....

I'd think the left should HOPE there ISN'T hearings, because if there is, they'll be the ones that leave with a black eye... as usual.

Whoever doesn't realize by now that this whole thing is just more crap from the left in their ever going attempt to bring this President down, fueled by their burning HATE for him, must have their head buried up their.... posterior orifice....

I'd think the left should HOPE there ISN'T hearings, because if there is, they'll be the ones that leave with a black eye... as usual.

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cmon now PR,,,posting pictures of our liberal posters isnt nice!

PSSSSSssss, I want a full frontal head shot to see if thats Maxi pad, mariner, confident or psychoBOOO HOOOS

2005 was already the year of the demagogue, having been dominated for months by the endlessly echoed falsehood that the president "lied us into war." But the year ends with yet another round of demagoguery.

Administration critics, political and media, charge that by ordering surveillance on communications of suspected al Qaeda agents in the United States, the president clearly violated the law. Some even suggest that Bush has thereby so trampled the Constitution that impeachment should now be considered. (Barbara Boxer, Jonathan Alter, John Dean and various luminaries of the left have already begun floating the idea.) The braying herds have already concluded, Tenet-like, that the president's actions were slam-dunk illegal. It takes a superior mix of partisanship, animus and ignorance to say that.
Does the president have the constitutional authority to conduct warrantless searches against suspected foreign agents in the United States? George Washington University law professor Orin Kerr (one critic calls him the man who "literally wrote the book on government seizure of electronic evidence") finds "pretty decent arguments" on both sides, but his own conclusion is that Bush's actions were "probably constitutional."

In 1972 the Supreme Court required the president to obtain warrants to eavesdrop on domestic groups but specifically declined to apply this requirement to snooping on foreign agents. Four appeals courts have since upheld presidential authority for such warrantless searches. Not surprisingly, the executive branch has agreed.

True, Congress tried to restrict this presidential authority with the Foreign Intelligence Surveillance Act of 1978. It requires that warrants for wiretapping of enemy agents in the United States be obtained from a secret court. But as John Schmidt, associate attorney general in the Clinton administration, wrote: "Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms." Indeed, President Bill Clinton's own deputy attorney general testified to Congress that "the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," then noted a few minutes later that "courts have made no distinction between electronic surveillances and physical searches."

Presidents always jealously guard executive authority. And Congress always wants to challenge the scope of that authority. This tug of war is a bipartisan and constant feature of the American system of separation of powers. President Bush's circumvention of FISA is a classic separation-of-powers dispute in the area in which these powers are most in dispute -- war powers.

Consider the War Powers Resolution passed over Richard Nixon's veto in 1973. It restricts, with very specific timetables, the president's authority to use force. Every president since Nixon, Democrat and Republican, has regarded himself not bound by this law, declaring it an unconstitutional invasion of his authority as commander in chief.

Nor will it do to argue that the Clinton administration ultimately accepted the strictures of the FISA law after a revision was passed. So what? For the past three decades, presidents have adhered to the War Powers Resolution for reasons of prudence, to avoid a constitutional fight with Congress. But they all maintained the inherent illegitimacy of the law and the right to ignore it. Similarly, Clinton's acquiescence to FISA in no way binds future executives to renounce Clinton's claim of "inherent authority" to conduct warrantless searches for purposes of foreign intelligence.

Attorney General Alberto Gonzales chose a different justification for these wiretaps: They were covered by the congressional resolution passed shortly after Sept. 11, 2001, authorizing the use of "all necessary and appropriate force" against al Qaeda. Gonzales's interpretation is based on a plurality Supreme Court opinion written by Sandra Day O'Connor that deemed legal the "executive detention" of U.S. citizen and enemy combatant Yaser Esam Hamdi. "Detention" is an obvious element of any authorization to use force. Gonzales argues that so is gathering intelligence about the enemy's plans by intercepting his communications.

I am skeptical of Gonzales's argument -- it implies an almost limitless expansion of the idea of "use of force" -- while the distinguished liberal law professor Cass Sunstein finds it "entirely plausible" (so long as the wiretapping is limited to those reasonably believed to be associated with al Qaeda). Sunstein maintains that "surveillance, including wiretapping, is reasonably believed to be an incident of the use of force" that "standardly occurs during war."

Contrary to the administration, I also believe that as a matter of political prudence and comity with Congress, Bush should have tried to get the law changed rather than circumvent it. This was an error of political judgment. But that does not make it a crime. And only the most brazen and reckless partisan could pretend it is anything approaching a high crime and misdemeanor.

so scared of terrorism that you're willing to let Big Brother tap your phone and read your email with zero probable cause and no need of a legal review?

How would it have hurt Bush to have the wiretaps reviewed by the judge within three days, just so someone, at least, was keeping an eye on Big Brother?

Already, we've learned that the supposedly international-only monitoring was in fact domestic at times (they're claiming computer error).

Where are the libertarian Republicans on this board? Where are the people who believe in a small, unintrusive government? Is everyone here simply in support of everything George Bush does? Has no one noticed that many Republican Senators' stomachs have gotten a bit upset over this wiretapping business? For once, I'd love to hear one of the regulars take an alternative Republican point of view than Bush's.

so scared of terrorism that you're willing to let Big Brother tap your phone and read your email with zero probable cause and no need of a legal review?

How would it have hurt Bush to have the wiretaps reviewed by the judge within three days, just so someone, at least, was keeping an eye on Big Brother?

Already, we've learned that the supposedly international-only monitoring was in fact domestic at times (they're claiming computer error).

Where are the libertarian Republicans on this board? Where are the people who believe in a small, unintrusive government? Is everyone here simply in support of everything George Bush does? Has no one noticed that many Republican Senators' stomachs have gotten a bit upset over this wiretapping business? For once, I'd love to hear one of the regulars take an alternative Republican point of view than Bush's.

Mariner.

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Only from a 20 some year dolt. I could care less for myself, but would like my kids and unborn progeny to have a chance. You don't get it, they mean to kill YOU! Not me. I'm old and no threat. You however, you are sweet pickings. You think you are atheist, sorry, no can do. Agnostic may be worse. Christian-but willing to sell out quick? regular slave, no hard time. Wanna fight? Cool, hard labor.

so scared of terrorism that you're willing to let Big Brother tap your phone and read your email with zero probable cause and no need of a legal review?

How would it have hurt Bush to have the wiretaps reviewed by the judge within three days, just so someone, at least, was keeping an eye on Big Brother?

Already, we've learned that the supposedly international-only monitoring was in fact domestic at times (they're claiming computer error).

Where are the libertarian Republicans on this board? Where are the people who believe in a small, unintrusive government? Is everyone here simply in support of everything George Bush does? Has no one noticed that many Republican Senators' stomachs have gotten a bit upset over this wiretapping business? For once, I'd love to hear one of the regulars take an alternative Republican point of view than Bush's.

Mariner.

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I'm not so afraid of being wiretapped [which won't happen, because I don't make calls to Afghanistan] that I'd rather see 3,000 more of my countrymen, innocents, molecularized or jump to their deaths.

so scared of terrorism that you're willing to let Big Brother tap your phone and read your email with zero probable cause and no need of a legal review?

How would it have hurt Bush to have the wiretaps reviewed by the judge within three days, just so someone, at least, was keeping an eye on Big Brother?

Already, we've learned that the supposedly international-only monitoring was in fact domestic at times (they're claiming computer error).

Where are the libertarian Republicans on this board? Where are the people who believe in a small, unintrusive government? Is everyone here simply in support of everything George Bush does? Has no one noticed that many Republican Senators' stomachs have gotten a bit upset over this wiretapping business? For once, I'd love to hear one of the regulars take an alternative Republican point of view than Bush's.

Mariner.

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well, if my life is so interesting to them, so be it that they listen, then. I am on here more often than I am actually on a phone. Even then, I am usually using my nextel 2-way talking to Tim, and many times, that conversation can be heard by all, if I am on the speaker itself.

Any other time, I am talking briefly to family members or friends on my home line. If me complaining about my job and co-workers, or talking to my physical therapist, or whatever, is something they want to listen to, then they are not doing a good job of protecting the country and should be fired.

The people doing the taps, are doing so only to those that would yield results, because they have already been suspected. If they get your line in error, they will realize it, and move on. The feds really don't care about your sordid affairs. All they care about is whether or not you are planning or aiding in terrorism.

Where are the people who believe in a small, unintrusive government? Is everyone here simply in support of everything George Bush does? Mariner.

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I fall into that group; but when you're engaged in a war, that changes things somewhat, don't you think? You do recognize that we're in a war, don't you, Mariner? I'm for giving President Bush all the powers he needs to make mincemeat out of the goddamned terrorists, or "revolutionaries" or "insurrectionists" as your side so fondly calls them. Name me one ordinary American who has been eavesdropped on under the provisions of the Patriot Act. Either put up or shut up, Chicken Little.

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